Smt. Kammarunnissa vs Smt. Geetha, Rafiq Ahmed, Sabina and Syed Ahmed

A.S. Bopanna, J.—The appellant herein is the plaintiff in OS. No. 621/1995. The suit in question was filed by the plaintiff for cancellation of the sale deed executed by Sri. Kallusab, namely, the father of the plaintiff on 19.11.1981 on the ground that the same had been obtained by fraud and also for a declaration that the sale deed executed by the second and third defendants in favour of the first defendant is null and void. The said suit came to be dismissed by the trial Court by its judgment and decree dated 10.4.2000. The plaintiff was before the lower appellate Court in an appeal filed u/s 96 of CPC in RA.No.128/2000. The lower appellate Court on re-appreciation of the matter has affirmed the judgment rendered by the trial Court and has dismissed the appeal. Against the concurrent findings rendered by the Courts below, the plaintiff is before this Court in this second appeal.

Heard the learned Counsel for the parties and perused the appeal papers.

The case of the plaintiff before the trial Court was that the suit schedule property was a tenanted land under the provisions of the Karnataka Land Reforms Act and accordingly, the occupancy right in respect of the said land had been granted in favour of the father of the plaintiff, namely, Sri. Kallusab. Sri. Kallusab is said to have expired on 23.6.1981. The plaintiff was before the Court below contending that the alleged sale deed dated 19.11.1981 has been obtained by the defendants from Sri. Kallusab fraudulently. It is further contended by the plaintiff that since Smt. Begum Bee wife of Kallusab had died the plaintiff''s father was depending on the plaintiff and as such, the sale said could not have been executed without the knowledge of the plaintiff. The defendants had opposed the contention of the plaintiff. It was contended on behalf of the defendants that the present suit is not sustainable not only on merits, inasmuch as, the defendants had purchased the property under a valid sale deed dated 19.11.1981, but also due to the fact that the parties were before the Court in an earlier suit in OS. No. 133/1988, which was decreed in favour of the defendants and had attained finality in RSA. No. 442/1996 and as such, when the right of the defendants to the suit schedule property had been decided in the earlier proceedings, the present suit is hit by principle of res-judicata.

On the rival contentions urged before the trial Court, the trial Court framed as many as eight issues for its consideration, which read as hereunder:

1) Whether the plaintiff proves that the plaint schedule property is the joint family property of the plaintiff and the 4th defendant?

2) Whether the plaintiff proves that the sale deed dated 19.11.1981 executed by A. Kallusab in favour, of the 1st defendant is a fraudulent transaction?

3) Whether the plaintiff proves that plaintiff is in lawful possession of the suit schedule property as on the date of the suit?

4) Whether the plaintiff further proves that defendants are un-lawfully interfering with her lawful possession and enjoyment of the suit schedule property?

5) Whether the suit is hit by principles of res judicate?

6) Whether the suit is barred by time?

7) Whether the plaintiff is entitle for relief of declaration and permanent injunction?

8) To what order or decree?

In order to discharge the burden cast on the parties, the plaintiff examined herself as PW.1 and marked the document at Ex.P1. The second defendant examined himself as DW.1 and marked documents at Exs.D1 to 5. While considering the evidence tendered before the trial Court the trial Court considered issue No. 5 at the outset since the same related to the finding to be rendered by the Court as to whether the present suit is barred by res-judicata. In this regard the trial Court has noticed the fact that the defendants herein had instituted a suit against the plaintiff in OS.No.133/1988 since there was interference with regard to the suit schedule property by the plaintiff. The said suit came to be decreed and the came was confirmed in the regular appeal In RA. No. 48/1993 on 24.2.1993 and the second appeal in RSA. No. 442/1996 preferred by the present appellant has been dismissed by this Court and as such, the same had attained finality. Therefore, the trial Court was of the view, since the issue relating to the suit schedule property with regard to the rival claims had already been adjudicated the present suit is barred by res-judicata. In the appeal preferred by the plaintiff the lower appellate Court has re-appreciated the evidence available on record. In fact, the lower appellate Court has made a detailed reference to the litigation between the parties and the nature of right claimed by the present plaintiff. In this regard, the lower appellate Court has also noticed that the plaintiff had instituted an earlier suit in OS. No. 253/1988 and the same had beer, withdrawn to file the present suit. Further, at the same time, the defendants herein had filed the suit in OS. No. 133/1988, which attained finality in RSA. No. 442/1996.

In the back ground of what has been noticed by the Courts below the learned Counsel for the appellant would contend that the Courts below were not justified, inasmuch as, the present suit is filed seeking for a judgment and decree to declare the sale deed dated 19.11.1981 as null and void and therefore, is the said circumstance, the preset suit could not have been held as barred by res-judicata.

In order to appreciate the said contention the facts as noticed by the Courts below and also referred to above would indicate that the issue between the parties was with regard to the right claimed by the defendants herein in respect of the very same schedule property based on the sale deed dated 19.11.1981 in the earlier suit instituted, namely, in OS. No. 1338/1988. In the said suit, the right of the plaintiffs therein, namely, the defendants herein was adjudicated in their favour holding their entitlement to the property purchased under the sale deed dated 19.11.1931 and as such, the relief was granted in their favour. The judgment and decree passed in the said suit was affirmed in favour of the plaintiff therein in the regular appeal as well as the second appeal before this Court on 20.2.1998. Therefore, when the subject matter of the present suit was not only substantially in issue, but was the main contention to the earlier suit and when the same has been decided, obviously the present suit is hit by the principles of res-judicata and therefore, both the Courts below were justified in coming to such a conclusion.

Hence, I do not see any error nor is there is any substantial question of law for consideration in the present appeal.

Accordingly, the appeal being devoid of merits is disposed of. No order as to costs.